Otis v. Hall

Per Curiam. . The only question is, whether the plaintiff is entitled to full costs, within the proviso of the 4th [451] section of the act concerning costs, which declares. that the limitation in that section shall not extend “ to any action where the freehold or title to lands or tenements shall in any wise come in question.2? We are of, opinion, that the freehold or title to the plaintiff’s land did not come in question," within the purview of the statute. This case bears no analogy to that of Heaton v. Ferris, (1 Johns. 146.) Here was no claim of a right of entry into the plaintiff’s land, nor of any direct use or enjoyment of it. The defendant merely sets up a right to use his own land, in the manner he has done, by erecting the dam; that any consequential injury to the plaintiff was waived by his express license for that purpose ; and that, it was a mere damnum absque injuria, for which the plaintiff had no right of action. The statute applies only to cases where a claim or question as to the direct use by entry on another’s land comes in controversy. This and many other cases of consequential injuries, as for nuisances erected on the defendant’s own land, do not in any manner bring the title in question. Nor does the setting Up alease or license by the plaintiff raise a question as to the title, or give any right or interest in the plaintiff’s land. Rule refused..